FIFTH SECTION

DECISION

Application no. 16553/17 Shakhban Kamilovich ISAKOV against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 25 November 2021 as a Committee composed of:

Arnfinn BÃ¥rdsen, President,

Ganna Yudkivska,

Mattias Guyomar, judges,

and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 24 February 2017,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Shakhban Kamilovich Isakov, is Russian national who was born in 1975 and lives in Kyiv. He was represented before the Court by Mr D. Dvornyk, Mr M. Tarakhkalo, Ms A. Salyuk and Ms O. Protsenko, lawyers practising in Kyiv.

2. The Russian Federation requested the applicant’s extradition from Ukraine on charges of being a fighter for the terrorist organisation the Islamic State of Iraq and al-Sham.

3. On 7 August 2016 the applicant was arrested in that connection. On 15 August 2016 a local court authorised his provisional arrest. On 25 August 2016 the Kyiv Regional Court of Appeal held that the failure to bring him before a court after more than three days in detention had been unlawful under domestic law, quashed the detention order on those grounds and released him.

4. The applicant was rearrested on 30 March 2017. On 1 April 2017 another local court placed him under provisional arrest. On 13 April 2017, on a subsequent appeal, the Court of Appeal upheld the lower court’s findings to the effect that the applicant’s most recent arrest and detention with a view to extradition were lawful and that a restrictive measure in view of his extradition was justified. It found, however, that it would be sufficient to place the applicant under house arrest, from 9 p.m. to 7 a.m. It imposed that measure, which remained in place until 10 August 2017, and released the applicant.

5. The relevant provisions of the domestic law can be found in, for example, Karpenko v. Ukraine ([Committee], no. 23361/15, §§ 22-27, 10 June 2021).

COMPLAINTS

6. The applicant complained:

(i) under Article 5 § 1 of the Convention that his deprivation of liberty from 7 to 25 August 2016 and from 30 March 2017 onwards had been unlawful;

(ii) under Article 5 § 2 that he had not been informed promptly of the reasons for his arrest on 7 August 2016 in his mother tongue, Avar, but only in Russian, which he had difficulty understanding (in particular on account of his lack of knowledge of legal terminology); and

(iii) under Article 13 that he had had no effective remedy in respect of his second arrest and subsequent detention.

THE LAW

7. The applicant alleged that his detention from 7 to 25 August 2016 had been unlawful because he had been detained without a court order authorising his detention whereas domestic law only allowed it for up to three days.

8. The Court notes, however, that the Court of Appeal acknowledged that there had been a breach of domestic law in this respect. It was open to the applicant to seek compensation on the basis of that finding (see the relevant case-law references in Kovrizhnykh v. Ukraine [Committee], no. 28943/15, §§ 32-33, 22 April 2021).

9. In this respect the circumstances of the present case should be distinguished from those in Voykin and Others v. Ukraine (no. 47889/08, § 127, 27 March 2018). In that case the Court was not convinced by the Government’s argument that the appellate court’s criticism of the reasoning put forward in justification of the applicant’s detention could be regarded as an unambiguous acknowledgment of its unlawfulness, thus creating the basis for a compensation claim.

10. The Court considers that the mere disagreement between the first ‑ instance and appellate court over whether there were sufficient reasons justifying the applicant’s detention in Voykin and Others cannot be equated with the acknowledgement of a flagrant breach of domestic law in the present case.

11. Relying on Voykin and Others , in Karpenko v. Ukraine ([Committee], no. 23361/15, §§ 31-34, 10 June 2021), a case which concerned detention in the context of extradition, the Court was also not convinced that rulings on appeal quashing first-instance detention orders constituted sufficient acknowledgment of illegality entitling the applicant to compensation. However, in Karpenko , unlike in the present case, the relevant decisions had not covered the entire period of unlawful detention and had not led to Mr Karpenko’s actual release, as he had continued to be detained arbitrarily in spite of those rulings (ibid., §§ 12-21).

12. Accordingly, unlike in the Voykin and Others and Karpenko cases (both cited above), the complaint under Article 5 § 1 concerning the applicant’s first arrest and detention from 7 to 25 August 2016 must be declared inadmissible for non-exhaustion of domestic remedies and rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

13. The applicant also argued that his detention from 30 March 2017 onwards had been unlawful because he had already been arrested on the same grounds in 2016 and released. He considered that his second arrest and detention had not corresponded to any of the aims set out in Article 5 § 1 (a) to (e) of the Convention. The Court sees no support for this complaint in the material in the case file. On 30 March 2017 the applicant was arrested and subsequently detained for the purpose of extradition. There is no indication that that purpose was no longer valid. Unlike in respect of his first arrest, the domestic courts did not establish any breach of the law in respect of his second arrest and the Court also perceives none.

14. Moreover, after 13 April 2017, when the applicant was released and put under house arrest at night, he cannot be considered to have been “deprived of liberty” (see De Tommaso v. Italy [GC], no. 43395/09, §§ 88 ‑ 90, 23 February 2017).

15. Accordingly, the applicant’s complaint under Article 5 § 1 concerning his detention from 30 March to 13 April 2017 is manifestly ill ‑ founded and, in respect of the period after 13 April 2017 when the applicant was under house arrest, incompatible with the Convention ratione materiae and should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

16. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

17. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 December 2021.

Martina Keller Arnfinn BÃ¥rdsen Deputy Registrar President